Fair Work Act 2009

s.120 - Redundancy pay

Utility Mapping (Aust) Pty Ltd Trading AS Utility Mapping

Application to vary redundancy pay - acceptable alternative employment - principles regarding exercise of discretion to reduce redundancy pay - no loss of remuneration - reduced seniority - acceptable alternative employment - finding that the employer did obtain acceptable alternative employment for the employee - remedy - discretionary relief -application granted.

• [1] Mr Alexander Jones was employed by Utility Mapping (Aust) Pty Ltd for almost 10 years. In June 2025 Utility Mapping formally made Mr Jones' position as Victorian Sales Manager redundant and offered him an alternate position as National Technical Lead. Mr Jones did not accept the alternative position and his employment ended.

• [2] Mr Jones was otherwise entitled to 16 weeks' severance pay under s.119 of the Fair Work Act 2009 (the FW Act). Utility Mapping applied under s.120 of the FW Act to reduce the severance pay to zero because Utility Mapping obtained other acceptable employment for Mr Jones (per s.120(1)(b)(i)).

• [3] The parties filed an Agreed Statement of Facts in the following terms:

1. The Respondent commenced employment with Utility Mapping (Aust) Pty Ltd (The Applicant) in September 2015.

1. Utility Mapping specialise in underground utilities searches.

1. Between 2017 and 2021, The Respondent worked as Operations Manager and was promoted Victorian State Manager in September 2021.

1. The Respondent's primary place of work was in Melbourne.

1. The Respondent was provided with an Employment Agreement for Victorian State Manager on 20 December 2021.

1. As Victorian State Manager, the Respondent had eight direct reports.

1. From September 2023, the Respondent was paid, $157,500 as a salary and a remuneration bonus of up to 15% of base salary and a motor vehicle allowance of $18,500. The bonus was to be assessed against Key Performance Indicators (KPl's) and measures that would be individually weighted and assessed against the total amount.

1. As State Manager, the Respondent's Key responsibilities included:-

• Managing and overseeing daily operations and performance of the branch; safety; HR and Sales functions of the business in Victoria;
• Assisting with the management of workflow;
• Assignment of project and coordinating resources;
• Liaising with the finance team to prepare budgets;
• Managing expenditures;
• Developing business by growing existing clients and engaging new clients.

1. In 2025, the Respondent had two young children.

1. On 7 May 2025, Matt Keppich (General Manager- East Coast) sent the Respondent a draft position description for the National Technical Role.

1. Between 9 May 2025 and 23 May 2025, the Respondent took a period of personal leave.

1. On 28 May 2025, the Respondent had a meeting with Matt Keppich regarding the National Technical role and the Respondent asked questions about that role stating he could not make an informed decision without an Employment Agreement and information regarding the bonus KPI structures.

1. On 30 May 2025, the Respondent received an email that attached a letter from the Applicant stating that the Respondent's role would be transitioned to a new National Manager role.

1. On 2 June 2025, the Respondent received an email that attached a letter from Paul Linton of the Applicant proposing a meeting to discuss a possible redundancy. A meeting was proposed for 3 June 2025.

1. At the meeting on 3 June 2025, the Respondent was accompanied by a support person, Jenna Simons. The Applicant was represented by Paul Linton and Ben Searcy (via teams).

1. During the meeting on 3 June 2025 and shortly after the meeting, the Respondent asked for an Employment Agreement and information regarding KPl's.

1. On 5 June 2025, the Respondent received an offer of redeployment to a National Technical Lead role, redundancy matrix regarding his former position being made redundant.

1. The final meeting occurred on 6 June 2025 when the Respondent advised the Applicant that the proposed role was not acceptable. After the meeting, the Respondent and his solicitors sent written correspondence to the Applicant informing them that the proposed role was not reasonably acceptable.

• [4] Mr Paul Linton (Executive General Manager) and Mr Ben Westaway (Chief Operating Officer) gave evidence for Utility Mapping and were cross-examined. Mr Jones gave evidence and was subject to cross-examination. Mr Jones also relied on statements from Mr Tom Langley-Dunn (Utility Mapping's former Operations Manager) and his friend Ms Jenna Simons, who was his support person at the meeting on 3 June 2025.

• [5] Much of the evidence focused on how the alternative position came to be offered to Mr Jones. Several matters were not agreed between the witnesses however I do not need to resolve those differences. To the extent that it is relevant, the key events that led to Mr Jones being offered the role of National Technical Lead can be summarised as follows:

(a) during general discussions about Mr Jones' career ambitions in 2023 Mr Jones expressed an interest in taking on a National Operations Manager role as an upward progression from his State Manager role;

(b) Mr Jones and Mr Westaway met in April 2025 and discussed a national role;

(c) Mr Jones was asked to write a job description for a national role, and he sent Mr Westaway the same position description that he had drafted in 2023;

(d) Mr Jones met with Matt Keppich (General Manager - East Coast) in May 2025 about a national technical role. Mr Jones said that Mr Keppich informed him that the National Technical role would be presented to him as an option and if he did not accept it he would continue in the State Manager role. Mr Keppich did not give evidence in the proceedings;

(e) Mr Jones also said that he was told by Mr Keppich that there would be frequent travel, probably on average at least one week per month;

(f) on 30 May 2025 Mr Jones received a letter from Mr Linton informing him of a variation to his employment contract following "an evaluation of [Utility Mapping's] organisational structure" and to "improve resource allocation within the business", that the variation was effective immediately, and that his role "has been transitioned to report to a new manager";

(g) on 2 June 2025 Mr Jones met again with Mr Keppich and in that meeting there were raised voices. Mr Jones said he was told in this meeting that the changes to his role were voluntary. Mr Jones asked for confirmation from HR that the changes were voluntary;

(h) later that day Mr Jones received an email inviting discussion about his position of State Manager becoming redundant;

(i) after a meeting on 3 June 2025 Utility Mapping provided a position description for the new role, a redundancy matrix and Mr Jones was told he would receive information about his new bonus and KPI arrangements;

(j) the position description for the proposed role was similar to the position description Mr Jones and previously provided but contained significant differences;

(k) in a final meeting on 6 June 2025, and after receiving legal advice, Mr Jones read the following prepared statement:

"Thank you for the offer of redeployment as national technical lead role after making my role as Victorian State Manager redundant.

After careful consideration I must respectfully decline the offer on the basis that the proposed position is not a suitable alternative employment as per Fair Work Act"

(l) Mr Jones' hand-written notes of his prepared statement included the following additional prompts:

"(still no bonus KPI for role)

I believe I remain entitled to my full redundancy entitlement in accordance section 119 of the Fair Work Act."

• [6] The salary, allowances and other conditions of employment for the proposed new role were identical to Mr Jones' role. There was some conjecture about access to bonus payments (see below) but otherwise all financial benefits would have remained unchanged.

• [7] Utility Mapping argued that there were only two material changes: the position title and the reporting line.

• [8] Mr Jones' strongest complaint about the proposed position was the loss of seniority associated with moving, he argued, from executive management to a subordinate technical support function. There is no contest that the new role has less direct reports.

• [9] Utility Mapping provided Mr Jones with a position description for the proposed role. The differences between the two position descriptions were the subject of scrutiny and attention at the hearing. The key differences were as follows:

Manage and oversee the daily operations and performance of the branch

Support the daily operations and performance of all branches to align with strategic business goals

Assist in the management of workflow and assignment of projects and coordinating resources

Manage workflow, project assignments, and national resource coordination to maximise efficiency and utilisation

Working closely with the finance team to prepare budgets and manage expenditure

Collaborate with Operational Management on budgeting, financial performance monitoring, and technical expenditure control

Developing business by growing existing clients and engaging new clients

Expand the client base and maintain strong relationships with key stakeholders

High level of leadership, people management and communication

Provide high level technical leadership and trouble-shooting support on complex or underperforming projects

Regular monitoring and review of field employees' competency, processes and progress

Mentor and support Team Leaders, Field Managers, and Surveyors in technical and operational performance.

Monitor and assess technical field staff performance, including regular site inspections to ensure adherence to company and safety standards

• [10] There is no evidence of any conversations about the key deliverables or the responsibilities of the proposed role. The debate at the hearing focused on the terms of the respective position descriptions.

• [11] In my view the differences in the two position descriptions are not striking however I am satisfied that the proposed National Technical Lead role is less senior than the State Manager Victoria role.

• [12] The seniority of a position is often in the eye of the beholder. Utility Mapping submitted that the alternative role was at the same level of seniority as the previous position, arguing that both positions are three steps below the Chief Operating Officer.

• [13] Mr Jones argued that the old position was more senior because it reported to a General Manager (the General Manager East Coast) and the new position did not. Mr Westaway conceded in cross-examination that the new position reported to a lower-level manager than the previous position.

• [14] The new position had a larger geographic spread, being a national role rather than a state role, and a significantly smaller number of direct reports.

• [15] The evidence was that Mr Westaway and Mr Linton were keen to keep Mr Jones in the business. Mr Westaway and Mr Linton both thought that Mr Jones was amenable to a national technical role. Both were surprised when Mr Jones announced that he rejected the alternative position and did not engage any further in (1) explaining his concerns or (2) bridging any gap between his expectations and Utility Mapping's expectations. The position offered was, in their subjective view, reasonable and sufficient to retain Mr Jones.

• [16] However it is not clear from the evidence why Utility Mapping felt the need to formally write to Mr Jones advising him that his position as State Manager Victoria was redundant at the time that it did so.

• [17] Utility Mapping could have merely arranged another meeting with Mr Jones to discuss a new role for him without sending the letter. However the meeting on 2 June 2025 did not go well: Mr Keppich was overheard yelling at Mr Jones and Mr Jones said that in the meeting Mr Keppich told him that the new position was optional and that he could continue in his current position if he did not agree to the new role.

• [18] Assuming that the new position was inferior, the only way Utility Mapping could have moved Mr Jones to a new position without his consent was by making his previous position redundant. Mr Jones submitted that the letter and subsequent meetings regarding redundancy were part of Utility Mapping's "take it or leave it" approach to pressure Mr Jones into accepting the alternative role. This submission is plausible - the message Utility Mapping sent to Mr Jones was that staying as the State Manager Victoria was not an option.

• [19] Mr Jones also relied on the following differences between the roles, being what he described as "material detriments":

(a) less budgetary responsibility, and no formal strategic involvement;

(b) a reduction in contractual working hours from 40 to 38, resulting in lower superannuation contributions;

(c) an expectation to work overtime with no additional compensation;

(d) no defined KPI or structured bonus system, impacting the ability to earn performance pay;

(e) a significant increase in interstate travel with no compensation or allowance; and

(f) a negative impact on family responsibilities due to travel requirements.

• [20] I will deal with each of these alleged detriments in sequence.

• [21] As can be seen in the table above, there is a slight difference in wording about the budgetary responsibilities of the two roles. In the State Manager role Mr Jones "[worked] closely with the finance team to prepare budgets and manage expenditure" whereas in the new role he would have "collaborate[d] with Operational Management on budgeting, financial performance monitoring, and technical expenditure control." This alleged detriment is not material.

• [22] Perhaps the low point of the contest was the competing submissions about the hours of work. The contract of employment signed by Mr Jones in 2021 refers to 40 ordinary hours per week plus additional hours as required to fulfil the requirements of the role. That contract also said that Mr Jones' salary includes provision for any overtime payments that might otherwise be payable. The draft contract provided in 2025 contains substantially the same terms but refers to 38 ordinary hours per week. Utility Mapping submitted that remuneration in the new contract was better than the current contract because Mr Jones could work 2 hours less per week for the same salary. Mr Jones submitted that the reduction to 38 hours per week was detrimental to him because his superannuation would be calculated on 38 hours rather than 40. Recognising that Mr Jones' base salary in 2025 was more than $150,000 per annum and his total package was more than $200,000 per annum, neither argument has any merit at all.

• [23] Utility Mapping indicated that it did not intend to make any change to the amount of superannuation it would pay on Mr Jones' behalf. I suspect that the difference between the two contracts is a product of Utility Mapping using a different starting template for the written contract rather than any conscious decision by Utility Mapping to reduce Mr Jones' ordinary working hours. If there be any detriment I do not regard it as being material.

• [24] Mr Jones' submission about overtime expectations falls into the same basket. There was no discussion at all in June 2025 about expectations for working overtime. I have not placed any weight on this alleged material detriment.

• [25] Mr Jones argued that the new position was not acceptable because Utility Mapping did not specify how his bonus payments would be calculated. Mr Jones said that despite requests, no defined KPIs or revised bonus structure was provided to him which, he said, engendered uncertainty as to the bonus payments.

• [26] Utility Mapping did not provide new and specific KPIs and bonus criteria before Mr Jones rejected the alternative position. However, the evidence was that KPIs and targets were reviewed and announced in June or July of each year. In Mr Jones' previous position he was told each June or July what his targets were for the next financial year.

• [27] In meetings and discussions in the first week of June 2025, Mr Jones was told that his targets would be put together for the new role. Mr Jones was aggrieved that Utility Mapping did not provided targets before he announced that he would not accept Utility Mapping's offer. In early June Mr Jones had no greater certainty regarding his targets as the State Manager for the next financial year than he was demanding for the new position. If the precise details of the bonus were a decisive factor for Mr Jones then, as a matter of logic, he would have simply waited for the information he was promised. I do not regard the supposed uncertainty about Mr Jones' bonus arrangements in June 2025 to be a material detriment.

• [28] Finally, Mr Jones raised concerns about travel requirements, particularly in the context of Mr Jones' concerns about the impact of travel on his family life with young children. The evidence of conversations about travel was conflicting. Mr Jones said that Mr Keppich told him that he would need to travel about one week per month. Mr Keppich did not give evidence. Mr Westaway gave evidence that he told Mr Jones that there would not be an increase in travel requirements.

• [29] On the evidence it seems likely that the travel requirements would be worse for Mr Jones in the national role. In the same way that the conversations about KPIs and bonuses were cut short by Mr Jones' announcement that he would not accept the alternative position, I suspect that Mr Jones' concerns could have been resolved by further discussion if the travel requirements were in fact a dealbreaker for Mr Jones.

• [30] I accept that the likelihood of additional travel requirements in the new role was a detriment however I am not convinced that it was an insurmountable difficulty or a material detriment.

• [31] By formally advising Mr Jones that his position was redundant, Utility Mapping opened the door for Mr Jones to exit the business.

• [32] With s.119 clearly in his sights, Mr Jones rejected the alternative position offered to him and exited the business because he thought the National Technical Lead position was inferior to his current position. As he said in his prepared statement:

"After careful consideration I must respectfully decline the offer on the basis that the proposed position is not a suitable alternative employment as per Fair Work Act"

• [33] As indicated above, I am satisfied that the position offered to Mr Jones was less senior than his position, and that there were some other detriments associated with the proposed position - the question to be determined is where the alternative position was objectively acceptable in the context of s.119 and s.120 of the FW Act.

• [34] Within the National Employment Standards (NES) of the FW Act s.119 provides an entitlement to redundancy pay according to the table provided therein. Section 120 of the FW Act allows the entitlement under s.119 to be reduced to a lesser amount "that the FWC considers appropriate." Sections 119 and 120 are in the following terms:

(1) An employee is entitled to be paid redundancy pay by the employer if the employee's employment is terminated:

(a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b) because of the insolvency or bankruptcy of the employer.

1. Variation of redundancy pay for other employment or incapacity to pay

(a) an employee is entitled to be paid an amount of redundancy pay by the employer because of section 119; and

(i) obtains other acceptable employment for the employee; or

(2) On application by the employer, the FWC may determine that the amount of redundancy pay is reduced to a specified amount (which may be nil) that the FWC considers appropriate.

(3) The amount of redundancy pay to which the employee is entitled under section 119 is the reduced amount specified in the determination."

• [35] Earlier Court[1] and Commission[2] decisions have established the following principles for considering the acceptability of alternative positions under s.120:

(a) the acceptability of the alternative employment is generally regarded to be an objective question to be answered by reference to objective factors;

(b) the fact that an employee accepts or does not accept the alternative employment is not necessarily determinative of whether the employment was 'acceptable' for the purposes of s.120;

(c) the FW Act creates a prima facie right to redundancy pay as a national employment standard if the conditions in s.119(1)(a) are satisfied;

(d) applications under s.120 must be considered from the perspective that any reduction ordered is a derogation from legislated minimum safety net standards that the FW Act otherwise applies to all contracts of employment;

(e) the origin of s.120 lies in the decision of the Full Bench of the Conciliation and Arbitration Commission in Termination, Change and Redundancy Case [1984] CthArbRp 284; (1984) 8 IR 34 to introduce an entitlement to severance pay for all employees under federal awards whose employment had been terminated because of redundancy;

(f) a determination under s.120 is not to be made in a vacuum and must consider factors such as whether the work is of a like nature; whether the location of the employment being offered is not unreasonably distant; whether the pay arrangements comply with award requirements; the hours of work; seniority; fringe benefits; workload and speed; and job security;

(g) the evidentiary burden falls upon on the applicant employer to provide evidence as to the provision of acceptable employment;

(h) in determining whether the employment is acceptable the Commission must consider the circumstances of the employee;

(i) alternative employment might be acceptable even if its terms are less advantageous;

(j) one objective test of acceptability is to consider whether the alternative work bears a sufficient comparability to the original work and is not unreasonably removed from the employee's original duties, skills set, qualifications, experience and other terms and conditions of employment;

(k) alternative employment might not be acceptable if there is not sufficient connection to the employee's demonstrated skill set and experience, or if the new employment places the employee in more precarious circumstances overall than if their former duties were still available;

(l) on its face the expression "other acceptable employment" is not confined to employment with another employer;

(m) section 120(1)(b)(i) is not concerned with the reasonableness of the employer's conduct, but only with the acceptability of the employment obtained by the employer. The reasonableness of the employer's conduct might be relevant to the exercise of discretion to provide relief;

(n) for an employer to avail itself of s.120, the other acceptable employment must be 'obtained' and offered to the employee while she or he is still employed by that employer;

(o) information and even misinformation provided to employees is irrelevant to the threshold question of whether the alternative employment is acceptable, but might be relevant to the exercise of the Commission's discretion; and

(p) the employee's willingness to meaningfully engage with the employer's various offers of reemployment may affect the exercise of the Commission's discretion.

• [36] The decision of a Full Bench of the Australian Industrial Relations Commission in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd: Re Clothing Trades Award 1982 [1990] AIRC 980; (1990) 140 IR 123 illustrates how s.120 can operate. In that matter a clothing manufacturer decided to cease manufacturing altogether, which caused the termination of employment of approximately 44 employees. The employer took steps to facilitate new jobs for most redundant employees with six other employers. 20 employees accepted alternative positions and 18 employees did not. The employer applied for an exemption from its obligation to pay severance payments to the 18 employees who did not accept alternative employment. The relevant term of the Clothing Trades Award 1982 was in similar terms to s.120 of the FW Act. The employer argued that the 18 employees who rejected offers of employment were uncooperative and that they did not have any grounds for objecting to the acceptability of the alternative employment arranged for them.

• [37] The Full Bench assessed the acceptability of the alternative positions objectively and specifically rejected the proposition that the alternative positions must have been acceptable because 20 other employees had accepted such positions. The Full Bench did not weigh in to the contest about whether the 18 employees had been sufficiently cooperative, however the Full Bench did reduce the severance payments for some employees and not others based on their specific circumstances and their reasons for rejecting the alternative positions. The Full Bench said at 130:

"The conclusions we have reached are based on an examination of the total evidence given by each witness. Each of the employees advanced reasons for not pursuing alternative employment. Having considered the evidence we have concluded that there are six former employees who should not be the subject of any exemption. They are Mrs M Konstantinidis, Mrs V Lotsas, Mrs T Milias, Mrs L Bogdanovski, Muoi Honh Kok and Mrs V Stogcevska. Each of these persons has circumstances which would, on an objective basis, preclude the alternative employment from being held to be acceptable. As to each of the other persons we find that the reasons for rejecting the opportunity were such that the test is not satisfied. We are unable to find in the context of the overall evidence given by these employees that these reasons are anything but subjective and pay no regard to the reasonable expectation that an employee would seek to minimise the hardship which may arise from the threatened redundancy."

• [38] The passage above refers to the "reasonable expectation that an employee would seek to minimise the hardship which may arise from the threatened redundancy." Whilst there is a reasonable expectation to minimise the hardship, there is no obligation or duty upon the employee to do so.

• [39] The purpose of the severance payments in s.119 is to compensate employees who are dismissed because of redundancy. Higher amounts are payable to employees with longer service because the hardship is assumed to be greater in terms of the loss of continuity in employment and access to serviced-based benefits such as long service leave. That said, the higher severance payments in s.119 are not a reward for longevity of service, indeed the severance pay reduces after 10 years of service because of long service leave entitlements.

• [40] When an employee accepts alternative employment s.120 allows the severance payment to be reduced in recognition of the fact that the potential hardship was wholly or partially avoided by the employee taking up acceptable alternative employment obtained by the employer. In such circumstances the employee has minimised the hardship by accepting the alternative employment.

• [41] However s.120 also allows the severance payments in s.119 to be reduced if the potential hardship would have or could have been minimised if the employee had taken up objectively acceptable alternative employment obtained by the employer for the employee, but chose not to do so. An employee who is offered alternative employment but rejects it may well suffer the same hardship that they would have suffered if the employer had not obtained the alternative employment at all. In such a situation the employee has chosen not to minimise the hardship by accepting the alternative employment.

• [42] In other words, s.120 can operate to reduce severance payments when an employee could have but did not minimise their hardship by accepting the objectively acceptable alternative employment, including circumstances where the employee in fact does suffer the hardship of redundancy after they rejected the alternative employment.

• [43] The acceptability of the alternative employment, assessed by application of the above principles and by consideration of the characteristics of the employment and the circumstances of each employee, is primarily directed to whether the alternative employment is sufficiently 'acceptable' to relieve the employer of the obligation to pay severance payments.

Did the employer obtain acceptable alternative employment?

• [44] In applying the above principles to the evidence in this matter I am satisfied that Utility Mapping did obtain acceptable alternative employment for Mr Jones.

• [45] Mr Jones did not take issue with Utility Mapping's decision to make his position as State Manager Victoria redundant. There was no suggestion, for example, that the redundancy was not a genuine redundancy.

• [46] By early June 2025 the provisions of s.120 of the FW Act were front and centre in the minds of both parties. Utility Mapping's correspondence ticked the usual boxes to fit within s.389 and Mr Jones' prepared statement that he read out at the final meeting specifically referred to "acceptable alternative employment" and the FW Act.

• [47] I accept Utility Mapping's evidence that it genuinely wanted to retain Mr Jones in its business. Mr Westaway and Mr Linton were both unambiguously clear in their evidence that they valued Mr Jones' work and wanted very much for him to stay. Mr Westaway's evidence under cross-examination included the following:

"... I was completely supportive of keeping Alex in the business [and] do whatever we needed to do [to keep him] ... look even today I'd always employ Alex. I like what Alex does and I like Alex in the business, and we were trying to help shape the role to what Alex wanted. It's as simple as that."

• [48] The remuneration for the proposed role was substantially the same - which is a significant factor. The base salary and car allowance were exactly the same.

• [49] Mr Jones' concerns about the certainty of his bonus and KPIs was not convincing. There was no evidence at all that showed that the at-risk component of Mr Jones' remuneration package was less secure under the proposed arrangements.

• [50] The proposed alternative position bore similarities to a national position discussed with Mr Jones two years before. That national position was seen by Mr Jones as a promotion and part of his career progression. Utility Mapping's case was that it had offered Mr Jones the position he had previously asked for. I do not accept this argument because there were material differences between the two national roles, most significantly in relation to the breadth of positions that would have reported to the role curated by Mr Jones. The position that was offered to Mr Jones was not a promotion, had less seniority, reported to a less senior manager and had significantly less direct reports.

• [51] In my view the alternative position was nonetheless 'acceptable' for the purposes of s.120. The work that would have been performed in the alternate role was of a like nature and would not have required Mr Jones to relocate. The alternate role could well have required some additional travel however I am prepared to take Mr Westaway and Mr Linton at their word that Utility Mapping would have taken steps to accommodate Mr Jones' concerns about travel.

• [52] The work in the National Technical Lead position bore sufficient comparability to Mr Jones' original work for it to be acceptable. The position had a greater focus on the technical aspects of the business, even though there would have been less direct managerial responsibility for the work of others. The relevant key responsibilities in the position descriptions bear out the similarities and the differences between the two roles. For example, in Mr Jones' state manager role his key responsibilities included "assist in the management of workflow and assignment of projects and coordinating resources" and in the proposed role the responsibility was to "manage workflow, project assignments, and national resource coordination to maximise efficiency and utilisation." Similarly in the state manager position he was responsible for "high level of leadership, people management and communication" and in the proposed role he would have been expected to "provide high level technical leadership and trouble-shooting support on complex or underperforming projects".

• [53] Mr Jones would not have been placed in a precarious circumstances in the new role. It was not the career advancement Mr Jones had been hoping for in 2023 but in 2025 it was an acceptable alternative to his career with Utility Mapping ending altogether by forced redundancy.

• [54] Even if Mr Jones saw the redundancy of his State Manager Victoria position as the start of the end of his career with Utility Mapping, the safest option for him was to accept the alternative position, continue to receive his annual salary and benefits, look for satisfactory work outside of Utility Mapping's business and then resign once new employment was secured.

• [55] For these reasons I am satisfied that the power to make an order under s.120 of the FW Act is engaged.

• [56] Section 120(2) of the FW Act gives the Commission considerable latitude in the relief it can provide if a threshold requirement in s.120(1) is met.

• [57] In this matter I am concerned that Mr Jones acted hastily to exit the business and claim a redundancy package despite Utility Mapping's efforts to retain him in an acceptable alternative position. Mr Jones had been employed with the business for 9 years and if his priority was to stay in employment in his relatively senior management position then he would have, or at least should have, done things differently. He should have given Utility Mapping more time to develop KPIs and bonus parameters, if that was important to him, and he should have taken steps to clarify the additional travel requirements, if any, and what accommodations could be made for the fact that his children were young.

• [58] Mr Jones was not required to accept the alternative employment, nor was he required to raise his concerns about the National Technical Lead position or give Utility Mapping the opportunity to refine or improve their proposal. With the benefit of legal advice he chose to do neither.

• [59] Utility Mapping pitched the National Technical Lead position at a mark that it thought would be subjectively acceptable to Mr Jones and was, as I have found, objectively acceptable. I accept Mr Westaway's and Mr Linton's evidence that they were open to further discussion about some aspects of the position to "help shape the role to what [Mr Jones] wanted".

• [60] Acceptable alternative employment with no reduction in remuneration was offered to Mr Jones and there are very few countervailing considerations telling against the exercise of my discretion to reduce the severance payment to nil. Mr Jones could have continued to work in the business in an acceptable role. He chose instead to force his departure without any further discussion. In my view it would not be reasonable for Utility Mapping to have to make a redundancy payment in these circumstances. Mr Jones' employment did not need to end for reason of redundancy. Although his position of State Manager Victoria was made redundant, Utility Mapping offered Mr Jones comparable ongoing work, which he declined.

• [61] In the circumstances I make the following order under s.120 of the Fair Work Act 2009:

1. The amount of redundancy pay to which Mr Alexander Jones is entitled under s.119 of the Fair Work Act 2009 (Cth) is reduced from 16 weeks' pay to nil.

[1] Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867. (2020) 296 IR 425, Berkeley Challenge Pty Ltd v United Voice [2020] FACFC 113, (2020) 297 IR 397, Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867; (2020) 296 IR 425 at 435, [2020] FCA 867 at [49].Australian Commercial Catering Pty Ltd v Fair Work Commission [2015] FCAFC 189, (2015) 235 FCR 441, FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90, (2015) 232 FCR 1, (2015) 250 IR 476

[2] Get Started Pty Ltd v Matthew Lee [2018] FWC 3295, Datacom Systems Vic Pty Ltd v Rasiq Khan; Siddharth Desai [2013] FWC 1327, NUW v Tontine Fibres [2007] AIRCFB 101, Von Bibra Robina Autovillage Pty Ltd [2007] AIRC 397, Australian Chamber of Manufacturers and Derole Nominees Pty Ltd - Clothing Trades Award 1982 [1990] AIRC 980; (1990) 140 IR 123, Clothing and Allied Trades Union of Australia v Hot Tuna Pty Ltd (1988) 27 IR 226, Termination, Change and Redundancy Case [1984] CthArbRp 284; (1984) 8 IR 34

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